Hailey v. Texas & P. Ry. Co
| Decision Date | 20 June 1904 |
| Docket Number | 15,178 |
| Parties | HAILEY v. TEXAS & P. RY. CO |
| Court | Louisiana Supreme Court |
Rehearing denied June 30, 1904.
Appeal from First Judicial District Court, Parish of Caddo; Thomas Fletcher Bell, Judge.
Action by Annie Hailey against the Texas & Pacific Railway Company. Judgment for plaintiff, and defendant appeals. Modified.
Wise Randolph & Rendall (Howe, Spencer & Cocke, of counsel), for appellant.
Scott & Jones and Hall & Jack, for appellee.
Plaintiff instituted this suit against the defendant, in her own right to recover the sum of $ 7,000, and as natural tutrix to recover the further sum of $ 8,000, with legal interest. The jury returned a verdict for $ 10,500. One of the jurors did not concur in the verdict.
The defendant prosecutes this appeal.
The facts of the case are that the late husband of plaintiff, J. M. Hailey, aged 42 years, was a switchman of the defendant company at $ 600 per month.
He applied in writing for the employment, and in the paper he signed, in answer to questions, he stated that he understood that it is necessary, in operating, for the company to have overhead and turn bridges at certain points on the line, and that he was aware of his exposures to injuries by being knocked off the side or top of the cars, unless he used care to avoid injury, and he agreed to acquaint himself with overhead and turn bridges. He further stated that he agreed not to look to the company, but to his co-employes, for information of any kind regarding danger growing out of the use of machinery and appliances necessary to the proper performance of his duties.
He became an employe of the defendant company on the 24th day of August. His service terminated on the 30th of September. He returned to service for the company on the 2d day of December, 1902, and suffered injury on the 10th following, and died from the effect of these injuries about 8 days thereafter.
On the day that he was hurt, at about 7:30 in the morning, the train on which he was riding was made up of two cars -- one a fruit car of ordinary height, and one Kansas City Southern furniture car. This was the first trip on that day.
The deceased was on the top of the second or furniture car. They were going upgrade, and, leaving the lower or house yard on their way to the junction yard, they came to a bridge over Anna street, the only bridge on the run they were making -- that is, from the home yard out to the junction, on which they frequently hauled furniture cars; but no witness testified that Hailey, the deceased, ever handled or worked as switchman on one of the furniture cars while it was running.
While passing under the Anna street bridge deceased stooped, not low enough, however, to avoid the bridge. He failed to clear the bridge, and was struck on the head; but it did not knock him off the car. The wound he received showed that he was in a stooping position. The wound was across his head, just above the forehead, half way between the crown of the head and the forehead. He lived about 8 days after he had received the injury which caused his death.
After they had passed the bridge and had gotten into the yard they (employes of defendant) heard groans, and, going up to the top of the high, or furniture, car in question, they found him (the deceased). He had been knocked down while passing under the bridge by the contact of his head with the bridge, as just stated.
The height of this bridge from the top of the rail to the lower edge of the girder of the bridge is 18 feet 4 inches. The cut over which is the bridge is a high cut. It averages 12 feet in height, as it runs zero to a high cut. The height of an ordinary box car from the top of the rail to the running board on the car is about 11 1/2 feet.
The height of a furniture car is 13 feet 9 1/2 inches. The clearance of an ordinary box car while passing under this bridge is about 6 feet 9 inches, and the clearance between a furniture car and the Anna street bridge was 4 1/2 feet. We subjoin a copy of a diagram showing the situation of bridge and measurements made.
[SEE ILLUSTRATION IN ORIGINAL]
The height of cars is not uniform. The measurement given, we understand, is about the average height.
The height of the deceased was 5 feet 8 inches.
This bridge was maintained by the railway company, and we infer that it was also built by the railway in accordance with authority and direction of the authorities of Shreveport.
One of the serious grounds of plaintiff's complaint is that there were no light ropes or whip lashes suspended at a distance of 150 feet from the approach to the bridge; and in that connection the contention of plaintiff is that there is no evidence that the late husband of plaintiff had at any time passed under the bridge on a furniture car requiring him, for his safety, to stoop or duck his head to escape collision with the bridge, and that the deceased had no knowledge of the danger.
Deceased left his wife and three minor children. He had earned better wages in times past, as he had been a conductor on a railroad. At the time he was injured he was receiving the wages before mentioned.
As relates to the law of this case, we do not attach the greatest importance to the written answers made by plaintiff to written questions propounded to him just prior to his going into service as switchman of the defendant company.
A written application for work may serve some purpose, not to the extent, however, of waiving ordinary diligence and attention of the employer. The state assumes that in enacting a statute, such as Act No. 39, p. 51, of 1882, for the protection of workmen and employes, that the employer will not fail to comply with its requirement.
The title of this act is suggestive of public policy adopted for the protection of human life. It reads: "To protect life and prevent accidents on trains and cars" -- and to this end orders ropes, properly knotted, be suspended at a point on the track, the entire width of the track, low enough to warn any train hand by its touch.
This statute was...
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